Fri November 2, 2012

What If There's No Winner? Presidential Campaigns And Their Lawyers Prepare

People cast their ballots at an early-voting center in Columbus, Ohio, on Oct. 15.

Jewel SamadAFP/Getty Images

The presidential race is expected to be extremely close, and that has a lot of people nervous about what it will mean for election night.

Does it mean that the vote count could drag on for days, or even weeks, as it did in 2000?

Lawyers for the campaigns, the political parties and state election offices are preparing for the possibility.

Ohio Secretary of State Jon Husted could very well be the man in the middle of any election night storm. By all accounts, the vote in his crucial battleground state will be extremely close.

"We are preparing for the potential that it would be so close, that we might not know what the results will be on election night," Husted says.

One possibility is that an automatic recount will be triggered, says Husted. Ohio law requires a recount if the vote margin between the candidates is a quarter of a percent or less of the total vote — or about a 150,000-vote difference.

"We are issuing directives and working with local [elections] boards to make sure that the rules are in place for how they're going to handle the security of the ballots, that everyone is well aware in advance of what the rules are for a recount process," says Husted.

Husted knows that if there is a recount, lawyers will be descending en masse on the Buckeye State. These will include lawyers for President Obama and Mitt Romney — and anyone else with an interest in the outcome.

But a recount is just one of several things that could delay the final count.

In Ohio, about 200,000 voters are expected to cast provisional ballots because they don't have identification, because they requested an absentee ballot but showed up at the polls instead, or for other reasons.

But those ballots can't even be counted until 10 days after Election Day according to Ohio law.

Then, says Ned Foley, an election law expert at Ohio State University, there's the state's announcement of the official count, or canvass. "The statute says that localities have up to 10 days to do that. So that's a second 10 days," Foley says. "That could take you to Nov. 27."

And he says any recount that might be triggered can't even begin until the canvass is completed — meaning the tally for Ohio could easily go into December. And the Electoral College needs to meet on Dec. 17 to officially pick the president.

Foley also says the deadlines could change if there are legal challenges and the courts get involved.

Larry Norden with the Brennan Center for Justice in New York notes that automatic recounts can be triggered by close votes in states other than Ohio, such as Florida, Colorado and Pennsylvania.

And he adds: "The big fights are always over ballots that have not yet been counted, so another issue is absentee ballots."

Norden, author of a new report detailing just how different and complicated the recount rules are in the crucial battleground states, notes that absentee ballots are increasingly popular around the country, and that they're unpredictable.

"In states like Florida, North Carolina and Ohio in 2008, we saw many thousands of rejected absentee ballots. So, that is likely to be a subject of dispute in a very close election," he says.

For example, an absentee ballot can be rejected if a voter accidentally signs it in the wrong place or if officials decide the signature doesn't match the one they have on record. Norden says similar issues can be raised with military and overseas ballots that could also arrive and be counted days after Nov. 6.

"It's an election administrator's prayer that we don't have close elections," he says.

The presidential campaigns also hope for a clear outcome next week, but they're preparing for the worst.

A Romney campaign aide, who spoke on background, says they have all the resources they need for any potential dispute or recount. The Obama campaign also has teams of lawyers ready to go.

But publicly, they're putting on a more optimistic front. Both campaigns say that they expect to win decisively on Nov. 6.

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

ROBERT SIEGEL, HOST:

The presidential election is expected to be extremely close. And that has a lot of people nervous about what that could mean for the vote count, and whether it could drag on for days or even weeks.

As NPR's Pam Fessler reports, lawyers for the campaigns, the political parties, and state election offices are mobilizing just in case.

UNIDENTIFIED MAN: What an utterly extraordinary day it's been. The last polls closed at nearly five hours ago but the United States of America still does not have a new president-elect. The vote in Florida is so evenly divided between...

FESSLER: Well, get ready. It could happen again.

JOHN HUSTED: We are preparing for the potential that it would be so close that we might not know what the results will be on election night.

FESSLER: And John Husted should know. He's Ohio's Secretary of State and could very likely be the man in the middle of any election night storm. Husted says one possibility is an automatic recount. Ohio law requires one if the vote margin between the candidates is a quarter of a percentage point or less, a real possibility. His office is working with local boards of elections on contingency plans.

HUSTED: To make sure that the rules are in place for how they're going to handle the security of the ballots; that everyone is well aware in advance what the rules are for a recount process.

FESSLER: He knows that if there is a recount the lawyers will have descended en masse on the Buckeye State; lawyers for Barack Obama and Mitt Romney, and anyone else with an interest in the outcome.

But a recount is only one of several possible delays if the election is really close. In Ohio, about 200,000 voters are expected to cast provisional ballots because they don't have ID or for other reasons. Those ballots can't even be counted until 10 days after Election Day. And then, says Ned Foley, an election law expert at Ohio State University, there's the routine canvas.

NED FOLEY: Which is the announcement of the official count. And the statute says that localities have up to 10 days to do that, so that's a second 10 days that could take you to November 27th.

FESSLER: That's right, he said November 27th. And if that doesn't make you nervous...

FOLEY: And then the third phase is the recount. And the recount can't begin until the canvass is over.

FESSLER: Which means the tally for Ohio could easily go into December when the Electoral College meets to pick the president. And Foley says that's if the normal process is followed. Mix in some legal challenges and court-imposed deadlines, and who knows what will happen.

LARRY NORDEN: The big fights are always over ballots that have not yet been counted, so another issue is absentee ballots.

FESSLER: Larry Norden is with the Brennan Center for Justice in New York. He has a new report today, detailing just how different and complicated the vote counting rules are in crucial battleground states. He notes that absentee ballots are increasingly popular and unpredictable.

NORDEN: In states like Florida, North Carolina, Ohio, in 2008 we saw many thousands of rejected absentee ballots. So that is likely to be a subject of dispute in a very close election.

FESSLER: He says that absentee ballot can be rejected if, say, a voter signs it in the wrong place. Or if officials decide the signature doesn't match the one they have on record. Norden says similar issues can be raised with military and overseas ballots, which can also arrive and be counted days after November 6th, which is why he says...

NORDEN: It's the election administrator's prayer that we don't have close elections.

FESSLER: At least not close enough for any of this to matter. The presidential campaigns are hoping that's the case but are preparing for the worst. A Romney campaign aide, who spoke on background, says they have the resources they need for any potential dispute or recount. The Obama campaign also has teams of lawyers ready to go.

Publicly at least the campaigns are more optimistic. Both say they expect to win decisively on November 6th.